United States v. Reyes-Ortiz , 308 F. App'x 647 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-29-2009
USA v. Reyes-Ortiz
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4233
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-4233
____________
UNITED STATES OF AMERICA
v.
LUIS ALBERTO REYES-ORTIZ,
Appellant
____________
On Appeal from United States District Court
for the District of New Jersey
(D. C. No.: 07-cr-00530)
District Judge: Honorable Joseph E. Irenas
____________
Submitted Under Third Circuit LAR 34.1(a)
January 9, 2009
Before: CHAGARES, HARDIMAN, Circuit Judges and ELLIS,* District Judge
(Filed: January 29, 2009)
____________
OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
*
The Honorable Thomas Selby Ellis, III, Senior District Judge for the United States
District Court for the Eastern District of Virginia, sitting by designation.
Luis Alberto Reyes-Ortiz pleaded guilty to a one-count information charging him
with unlawful reentry in violation of 8 U.S.C. § 1326. The District Court sentenced
Reyes-Ortiz to 41 months imprisonment and he filed this timely appeal. Counsel for
Reyes-Ortiz has moved for permission to withdraw pursuant to Anders v. California, 386
U.S. 738 (1968). We will grant counsel’s motion and dismiss the appeal.
I.
Because we write exclusively for the parties, who are familiar with the facts and
proceedings below, we will not revisit them here.
When counsel files a motion pursuant to Anders, as counsel for Reyes-Ortiz has
done here, we determine whether: (1) counsel adequately fulfilled the Anders
requirements, and (2) an independent review of the record presents any non-frivolous
issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
To meet the first prong, appointed counsel must examine the record, conclude that
there are no non-frivolous issues for review, and request permission to withdraw.
Counsel must accompany a motion to withdraw with a “brief referring to anything in the
record that might arguably support the appeal.” Anders, 386 U.S. at 744. Reyes-Ortiz’s
counsel identified five reasons why an appealable issue does not exist: (1) there are no
preserved defense objections; (2) there were no procedural errors in the guilty plea or
sentencing proceedings; (3) the District Court considered whether a sentence outside the
Guidelines range was warranted and determined that there was no factor to justify a non-
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Guidelines sentence; (4) the sentence imposed was reasonable; and (5) Reyes-Ortiz
knowingly and voluntarily waived his right to appeal his conviction and sentence.
After Reyes-Ortiz was informed of his counsel’s intention to file an Anders brief,
he reiterated his prior request to challenge the sufficiency of the representation he
received in the District Court. We generally do not entertain ineffective assistance of
counsel claims on direct appeal; rather, “a defendant must raise ineffective assistance of
counsel in a collateral proceeding under 28 U.S.C. § 2255 in order that the district court
may create a sufficient record for appellate review.” Gov’t of Virgin Islands v. Forte, 806
F.2d 73, 77 (3d Cir. 1986).
We find that counsel’s discussion of the reasons why no appealable issue exists, as
well as Reyes-Ortiz’s ineffective assistance of counsel claim, meet the requirements of
the first prong of Anders.
As for the second prong of Anders, we have independently reviewed the record
and we agree with counsel’s comprehensive analysis as to why no appealable issue exists.
Accordingly, we will affirm the judgment of the District Court and grant counsel’s
motion to withdraw pursuant to Anders.
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